Judgment No. 25365 of 2023: Nullity and Right of Defense in Pandemic Times

Judgment No. 25365 of February 16, 2023, filed on June 13, 2023, offers an important reflection on the exercise of the right of defense in an emergency context, such as that created by the Covid-19 pandemic. In particular, the Court addressed the issue of the omission to assess written conclusions submitted by the defense via certified email (PEC), establishing precise conditions regarding the nullity of such acts.

Context of the Judgment

The decision of the Court of Cassation falls within the scope of the emergency regulations adopted to address the health crisis. This period saw the implementation of digital tools to ensure the right of defense and the continuity of proceedings. However, the use of PEC raised questions about the form and content of communications between parties.

Emergency regulations for the containment of the Covid-19 pandemic – Transmission of written conclusions by the defense via PEC – Omission to assess in the judgment – Intermediate nullity – Exclusion – Conditions. In the context of emergency regulations for the containment of the Covid-19 pandemic, the omission to assess, in the judgment, conclusions sent by the defense via PEC constitutes a cause for intermediate nullity, pursuant to Article 178, paragraph 1, letter c), of the Code of Criminal Procedure, provided that the act, regardless of the qualification assigned to it by the party, has an effective argumentative content and constitutes a concrete exercise of the right of defense, as only in this case is there a violation of the defendant's right to intervene.

Implications of the Judgment

The Court clarified that intermediate nullity occurs only if the conclusions submitted by the defense possess significant argumentative content. This aspect underscores the importance of not limiting oneself to mere formality, but of ensuring that every defensive act represents a genuine exercise of the right of defense. This is particularly relevant in a context where the digitalization of communications could lead to an excessive simplification of procedures.

Conclusions

Judgment No. 25365 of 2023 represents a milestone in Italian jurisprudence on criminal law. It reaffirms the centrality of the right of defense, even in emergency situations, and establishes that every defensive communication must be carefully evaluated. It is crucial for legal professionals to be aware of these regulatory and jurisprudential developments to ensure the proper protection of their clients' rights.